Opinion filed October 11, 2012



### In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00299

- CR

__________ R E C ORO RODRIGUEZ VELASQUEZ , SR. , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 82nd District Court

Falls County, Texas

Trial Court Cause No. 7363

M E M O R A N D U M O P I N I O N

Rec o ro Rodriguez Velasquez , Sr. 1 appeals from the judgment revoking his community supervision and adjudicat ing his guilt. Velasquez had previously plead ed guilty to the charge of bail jumping and failure to appear, and while the trial court found the evidence sufficient to support his plea, it deferred adjudicating guilt and placed him on community supervision for ten years. As a condition of super vised release, Velasquez was ordered to pay restitution of $68,433 for past

- due child support by paying $ 571 each month. Later, Velasquez filed a motion to

1 We note that the name of appellant in most of the documents in the clerk’s record, including the judgment, is shown to be “Recardo Rodriguez Velasquez, Sr.” However, the indictment reflects his first name to be “Recoro.”2

modify the minimum monthly payments because his monthly income was less than his monthly
restitutio n payment. The trial court denied his request. Just before the ten

- year term expired, the State moved to proceed to adjudicate his guilt becaus e “he has failed to pay restitution, ” to which Velasquez plead ed not true based on inability to pay

. After hea ring testimony, the trial court
revoked Ve lasquez’s community supervision and adjudicated his guilt on the origi nal count for bail jumping and failure to appear. The trial court assessed punishment at confinement for five

years , which it probated and requ ired payment of the original restitution as a condition of probation

. We reverse and remand.
In his sole issue , Velasquez argues that the trial court abused its discretion when it
revoked his community supervision because the evidence was insufficient t o show that he had the ability to pay. Specifically, he argues that the trial court failed to consider the statutory factors when making its determination. We review a trial court’s decision to revoke community supervision for abuse of
discretion. Rickel s v. State , 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State , 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). Abuse of discretion occurs “only when the trial judge’s d ecis ion was so clearly wrong as to lie outside t hat zone within which reasonable person s might disagree.” Cantu v. State , 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
In a proceeding to adjudicate guilt , the State has the burden to prove a violation of the conditions of community supervision by a preponderance of the evidence. Rick els , 202 S.W.3d
at 763

– 64; Cobb v. State , 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). The trial court is the judge of a witness’s credibility and the weight to be given the testimony, so we view the evidence in the light most favorable to the trial court’ s ruling. Garrett v. State , 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
When a trial court determines whether to revok e community supervision and adjudicate guilt on the sole ground of failure to pay restitution

—unlike other violations

— it must investigate
the reasons for the failure. Bearden v. Georgia , 461 U.S. 660, 668

– 69 (1983). If the investigation reveals that the failure was intentional, revocation and imprisonment may be appropriate; however, if the failure was not the fault of th e probationer, the court must determine whether alternatives are available that would adequately meet the State’s interests. Id. The Supreme Court advised that
, “if the probationer has made all reasonable efforts to pay the fine or restitution, and yet c annot do so through no fault of his own, it is fundamentally unfair to revoke3

probation automatically without considering whether adequate alternative methods of punishing
the defendant are available.” Id. “This lack of fault provides ‘a substantial reas on which justifies or mitigates the violation and makes revocation inappropriate.’” Id. at 669 (citing Gagnon v. Scarpelli , 411 U.S. 778, 790 (197 3 )). Thus, although a plea of true is generally sufficient to support a judgment that revokes community supe rvision, when the sole basis is failure to pay restitution, there must be evidence that the probationer willfully refused to pay or failed to make bona fide efforts to pay. Id. at 672

– 73; Cole v. State , 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Gipson v . State , 347 S.W.3d 893, 896

– 97 (Tex. App.

— Beaumont 2011, pet

. granted); Lively v. State , 338 S.W.3d 140, 144 (Tex. App.

— Texarkana 2011
, no pet.).
Once the State proves the failure to pay by a preponderance of the evidence, the trial
court must then consid er statutory factors when it determines whether to revoke community supervision. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.037(h) (West Supp. 2012) . As the Texarkana Court of Appeals has noted, the legislative history of Article 42.037(h) shows that the factors
account for the c onstitutional protections outlined in Bearden that require inquiry into the probationer’s ability to pay. Lively , 338 S.W.3d at 145 (citing Criminal Justice Comm., Bill Analysis, Tex. H.B. 312, 80th Leg., R.S. (2007) (“This bill conforms the statute to the requirements of the Due Process Clause as interpreted by the United States Supreme Court in Bearden v. Georgia .”)). Therefore, when a trial c ourt hears evidence and weighs the statutory
factors in making its determination, the c ourt sa tisfies the due process protections. Velasquez admitted that he failed to pay restitution as ordered by the court
, but he plead ed not true because of inability to pay. After the State establish ed the failure to pay, Velasquez testified that he did not have the ability to pay and entered into evidence a letter from the Social Security Administration in which the SSA confirmed his income . H e also entered into
evicence a letter from his physician in which the physician confirmed his disability. Additionally, he testified that he owned no property or assets other than his home and that his ex

wife, who is the recipient of the resti tution, credited $36,000 toward the total amount of restitution Velasquez owed. Nonetheles s, the trial court proceeded to adjudicate his guilt on the original charge of bail jumping and failure to appear. In its judgment, the court stated that its
“Grounds for R evo cation” was that Velasquez “pled true to all allegations as numbered in the
Stat e’s Motion.”4

While it is true that Velasquez did not pay and did not contest this fact, before a court can revoke community supervision and proceed to adjudicate solely for failure to pay restitution, the
court “ shall consider” the factors outlined by the legislature that inquire into the reasons for the failure to pay

. Article 42.037(h). If Velasquez had plead ed true to an allegation that he willfully failed to pay restitution, his plea alone would support revocation, but he plead ed “not true based [on] inability to pay.” Without more, his plea alone is insufficient to support revocation based solely on his failure to pay restitution. See Bearden , 461 U.S. at 672

– 73; Cole , 578 S.W.2d at 128; see also Gipson , 347 S.W.3d at 895 ; Lively , 338 S.W.3d at 145

– 46. Because the record shows that the trial court relied on the plea alone and does not show that the trial court considered the statutory factors and reason for failure to pay restitution , we conclude that the trial

cour t abused its discretion when it revoked Vela squez’s community supervision. Velasquez’s
sole issue is sustained
We reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion.

JIM R. WRIGHT
CHIEF JUSTICE October 11, 2012 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel 2 consists of: Wright, C.J., McCall, J., and Hill. 3

2 Eric Kalenak, Justice, resigned effective September 3 , 2012. The justice position is vacant pending appointment of a successor by the governor or until the next general election.

3 John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.